July 2010

Instead the slim majority, led by Justice Anthony Kennedy said that criminal suspects must speak up and tell interrogators that they want to remain silent before their Miranda rights are invoked. Writing for The Root, University of Maryland law school professor Sherrilyn Ifill maintained that "police officers may now interrogate detainees for hours on end - no limit is suggested by the court - and so long as the detainee does not use the magic words that expressly indicates a refusal to answer questions or the desire for an attorney, any words uttered - no matter how few - may be used against him."

During a recent ACS panel discussion, constitutional law experts discussed Miranda's future in light of the recent court rulings, such as Berghuis, and the administration's announcement that it would seek a broad exception to the Miranda rule, established in the 1966 landmark ruling in Miranda v. Arizona.

Constitutional law expert and Georgetown University Law Center Professor David Cole noted that a "public safety exception" has already been created by the Supreme Court and that further carving out exceptions to the Miranda rule for waging war against terrorism, a nebulous term, would only further weaken constitutional rights for citizens and noncitizens. And broadening an exception to the Miranda rule, Cole added, would likely be unconstitutional.

It is not clear why Congress should be speaking to this matter, Cole (pictured) said. Miranda, he continued, is a judge-made rule driven by constitutional concerns. And the last time Congress "waded into" the realm by trying to re-write Miranda, the high court invalidated the action.

The panel also included Michael German, policy counsel for the ACLU and a former FBI special agent, and Benjamin Wittes, a senior fellow and research director at Brookings. Video of the panel discussion, "Miranda's Future," is below.

At a plenary panel discussion called "Congress and the Courts," at the 2010 ACS National Convention, constitutional law expert and ACS Board member Pamela S. Karlan provided a succinct, cogent explanation of the importance of an intellectually strong and independent judiciary and a federal bench filled with judges who understand the Constitution's values and their role in ensuring enforcement of constitutional rights. Karlan said the Constitution's principles "were intended to endure for a very long period of time" and be applicable for a nation that would eventually emerge. Karlan also described Congress' role in ensuring the constitutional guarantees through the Reconstruction Amendments and the vital role that U.S. District Courts and federal appeals courts play in protecting and ensuring applicability of constitutional principles.

Video of Karlan's comments are below or they can be downloaded as a podcast here. The entire plenary panel discussion can be watched here.